Tacheles Legal Case Law Ticker Week 21/2021

1. Decisions of the Federal Social Court on basic income support under the (SGB II)

1.1 – BSG, judgment of May 19, 2021 – B 14 AS 57/19 R

Basic income support for job seekers – Accommodation costs – Rental apartment – Heating cost arrears – Inefficient heating behavior

Additional heating costs must be recognized as a need on a per capita basis.

Guidance (Editor)
1. A prerequisite for the acceptance of a subsequent claim is generally that the claimed need relates to the currently occupied apartment. Exceptions to this are recognized under further conditions if there is continuous receipt of benefits under Book II of the German Social Code (SGB II). The same applies if the receipt of benefits is interrupted due to a priority application for child housing benefit.

2. The additional claim exceeding the limit of the "Federal Heating Cost Index" must be recognized as a need of the plaintiffs. According to established case law, the refusal to cover unreasonable accommodation or heating costs generally requires a cost reduction procedure that enables the benefit recipient to comply with their legally mandated obligation to reduce costs.

3. The warning and information function associated with a cost reduction request is also indispensable with regard to heating costs that exceed the limits of the "Nationwide Heating Cost Index" and indicate uneconomical heating behavior.

Source: www.bsg.bund.de

Note:
If heating costs are too high, the job center must urge you to save money.

More information: www.evangelisch.de

1.2 – BSG, judgment of May 19, 2021 – B 14 AS 39/20 R

Basic income support for job seekers – accommodation costs – rental apartment – underground parking space

Higher benefits for accommodation and heating, taking into account the so-called "garage supplement".

Guidance (Editor):
1. Expenses for a parking space or garage are only recognized as a need for accommodation and heating if – as in this case – the apartment and parking space are components of a single tenancy agreement, partial termination relating to the parking space is not possible, and the total rent is reasonable. In this case, there is no obligation to reduce costs, for example, by subletting the parking space.

2. Such an obligation cannot be based either on Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), which requires that the limit of reasonableness be exceeded, or on the general principle of subsidiarity of Section 2 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).

3. The latter is not an independent exclusion criterion, but rather a fundamental principle that is further defined by the specific provisions of the German Social Code, Book II (SGB II), and which is generally only relevant in conjunction with these provisions. The detailed set of rules in Section 22 of the SGB II already takes the principle of subsidiarity into account.

Source: www.bsg.bund.de

Note:
Garage parking space exceptionally at the expense of the job center.

Job centers cannot categorically refuse to cover the costs of a rented garage parking space for recipients of Hartz IV benefits. If the accommodation costs are reasonable and the parking space is inextricably linked to the apartment rental agreement, the job center must cover the full rental expenses.

More information: www.evangelisch.de

2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)

2.1 – LSG Berlin-Brandenburg, decision of 20.04.2021 – L 3 AS 350/21 B ER

Preliminary legal protection – regulatory order – additional needs due to hygiene requirements (FFP2 protective masks)

Guiding principle (Editor):
No additional need for FFP2 masks, as the applicant's additional need is not unavoidable because it is covered by his individual savings opportunities in other areas and, moreover, does not deviate significantly from an average need in terms of amount.

Source: gesetze.berlin.de

2.2 – LSG Berlin-Brandenburg, judgment of April 21, 2021 – L 18 AS 132/21

Basic income support for job seekers – application requirement – application for unemployment benefit under the German Social Code, Book III (SGB III) does not generally include application for unemployment benefit II (Alg II) – no retroactive benefit payments – no right to restitution under social law

Principle:
An application for unemployment benefits under the German Social Code, Book III (SGB III) does not generally include an application for unemployment benefits under the German Social Code, Book II (SGB II) (following the Federal Social Court's ruling of April 2, 2014 – B 4 AS 29/13 R).

Source: gesetze.berlin.de

Harald Thomé's note:
However, it must always be examined to what extent the employment agency committed a failure to provide advice under Section 14 of the German Social Code, Book I (SGB I), and failed to point out the sensible option of applying under the German Social Code, Book II (SGB II). Because in cases where benefits under the German Social Code, Book III (SGB III) were not granted, it should have been obvious at the time of application that the requirements for entitlement to unemployment benefit I (ALG I) might not be met.

It would also be necessary to examine whether the refusal notice contained a reference to the repeated application pursuant to Section 28 of the German Social Code, Book X (SGB X), with the shortened deadline in relation to unemployment benefit II (Section 40, Paragraph 7 of the German Social Code, Book II (SGB II)). In both of the aforementioned points, a claim could potentially be asserted under the social law restitution claim for retroactive SGB II benefits due to a failure to provide advice.

2.3 – LSG Hessen, decision of 07.05.2021 – L 9 AS 158/21 B ER

Job center does not have to pay for FFP2 masks

The LSG Darmstadt has ruled in preliminary legal proceedings that recipients of basic income support (Hartz IV) are not entitled to additional benefits for the purchase of FFP2 masks.

Summary:
Costs for FFP2 masks are not considered an additional need under Hartz IV benefits.

Continue on Juris

3. Decisions of the social courts on basic income support for job seekers (SGB II)

3.1 – Schleswig Social Court, Judgment of 04.05.2021 – S 33 AS 592/19

In a recent ruling dated May 4, 2021 (not yet legally binding), which was also obtained by the law firm Audörsch, the Schleswig Social Court has once again clarified that the district of North Frisia does not have a coherent concept for determining the so-called rent ceiling for benefit recipients (SGB XII, SGB II [Hartz IV]), but the coherent formation of the comparison area has now also been called into question.

The Schleswig Social Court stated the following in this regard: westkuestenanwalt.com

3.2 – SG Schleswig, Judgment of 10 May 2021 – S 33 AS 349/20

Due to the successful work of the law firm Audörsch, the Schleswig Social Court ruled in a court decision dated May 10, 2021 (S 33 AS 349/20 – not legally binding) that the proceeds from the sale of an entire company are not income, but assets.

In this respect, the Schleswig Social Court refers to the decision of the Karlsruhe Social Court cited by the law firm Audörsch in the context of the legal proceedings and justifies its decision as follows: westkuestenanwalt.com

4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)

4.1 – Lower Saxony-Bremen State Social Court of 03.05.2021 – L 8 SO 47/21 B ER

Principle by Attorney Michael Loewy
1. The applicant is not obligated to submit an application for integration assistance within the framework of self-help.

2. A right to integration assistance that upholds human dignity in accordance with Article 1 Paragraph 1 of the Basic Law and Article 1 Sentence 1 of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD; Federal Law Gazette II 2008, 1419), and that recognizes the autonomy, personal responsibility and self-determination of disabled persons, must also respect and honor the individual decision to forgo assistance.

3. A duty to cooperate in order to achieve an “improvement” of the person concerned by claiming integration assistance does not pursue a legitimate aim; there is no “rational sovereignty” of state bodies over those entitled to fundamental rights (cf. Federal Constitutional Court, judgment of 5 November 2019 – 1 BvL 7/16 – juris para. 127 with further references).

Source: www.anwaltskanzlei-loewy.de

4.2 – SG Schleswig, Judgment of 23 November 2020 – S 12 SO 114/17

In another decision successfully obtained by the law firm Audörsch (judgment of November 23, 2020, not yet legally binding), the Social Court in Schleswig ruled that the concept for determining the rent ceilings in the district of North Frisia is not transparent and therefore inconclusive, since, among other things, the collected data does not allow for verification as to whether this data reflects the landlord structure in the comparison area.

Specifically, the court refers to a decision of the Schleswig-Holstein Higher Social Court and states the following: westkuestenanwalt.com

5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)

5.1 – SG Kassel v May 19, 2021, S 11 AY 9/21 ER

SG Kassel v 20.5.21, S 12 AY 10/21 ER

Attorney Volker Gerloff adds:
No Corona supplement for “AsylbLG children” – the only group that goes empty-handed and already has the least.

A mess, but probably not legally actionable, or only with enormous effort…

Source: twitter.com

6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes

6.1 – Federal Constitutional Court, Second Senate, Decision of 7 July 2020 – 2 BvR 696/12

Author: Prof. Dr. Steffen Luik, RiBSG

Unconstitutionality of the transfer of responsibilities for the education and participation package under the German Social Code, Book XII (SGB XII) to the municipalities

Guiding Principles
1. Article 28 paragraph 2 of the Basic Law is further defined by the prohibition of intervention in Article 84 paragraph 1 sentence 7 of the Basic Law. It prohibits the Federal Government from transferring new tasks to municipalities.

2. A case under Article 84 paragraph 1 sentence 7 of the Basic Law exists if a federal law assigns a specific task to municipalities for the first time or makes a functionally equivalent extension of a task already assigned by federal law.

3. An adjustment of tasks already assigned by federal law to changed economic and social circumstances is permissible according to Article 125a paragraph 1 sentence 1 of the Basic Law.

Source: www.juris.de

6.2 – De minimis threshold for repayment claims under the German Social Code, Book II (SGB II)

The FDP parliamentary group is calling for the introduction of a de minimis threshold for repayment claims in the Second Book of the Social Code (SGB II).

They are therefore demanding a de minimis threshold of 36 euros for repayments under the German Social Code, Book II (SGB II).

Further information: www.juris.de

6.3 – Submission to the Federal Constitutional Court regarding the constitutionality of the BAföG needs-based allowance for students

The Federal Administrative Court (BVerwG) is convinced that the provision of the Federal Training Assistance Act (BAföG), according to which a monthly allowance of 373 euros applied to students during the period from October 2014 to February 2015 (§ 13 paragraph 1 number 2 BAföG), violates the right to a guaranteed minimum subsistence level related to education, which derives from the constitutional right to equal access to state-run educational opportunities (Article 12 paragraph 1, Article 3 paragraph 1 of the Basic Law in conjunction with the social welfare principle of Article 20 paragraph 1 of the Basic Law).

The Federal Administrative Court has therefore decided to refer the question of the compatibility of the needs-based rate with the aforementioned provisions of the Basic Law to the Federal Constitutional Court for a decision.